Panel 3 - Law, Institutions and Climate Change

The essays in this part consider the challenges that climate change presents to institutions of governance. How might responding to climate change require a transformation in existing modes of governance? Within government, does it require a renegotiation of the balance of powers between executive, legislative and judicial branches? Between federal, provincial and local governance? More broadly, might it require a recalibration of the relative roles of markets, private actors, governments and transnational organization? These issues speak to both our ability to slow climate change and to how we might fairly adapt to its impacts.
CHAIR: Larissa Katz
Alan Brudner, “Constitutionalism, Executive Power and Climate Action”
This essay inquires whether a constitutional state, understood as a state ruled strictly by laws rather than by natural persons, can give executive experts the rule-making powers they need to deal effectively with climate change. Drawing from Rousseau and Hegel, it distinguishes between two stringent models of the constitutional state: a democratic-republican model and one ordered to an autonomous concept of Law. It compares their abilities to accommodate an executive with a robust rulemaking authority. The essay concludes that, whereas the democratic model is hostile to executive rulemaking, the Law centred model is at ease with it and allows it to flourish within bounds. The Law centred model is thus the only one to reconcile a stringent concept of the constitutional state with the executive power needed to keep global warming in check. Other descriptions of the constitutional state (e.g., those of Hobbes and Kant) also empower the executive to the requisite degree, but at the cost of debasing the concept.
David Dyzenhaus and Megan Pfiffer, “Legality's place in a changing world”
The role of the rule of law in responding to emergencies caused by civil unrest is much discussed. Dyzenhaus has developed a theory of how such a response can productively happen through the coordination of legal institutions that permits a ‘virtuous cycle of legality’ to unfold. In such a cycle, institutions-the legislature, the judiciary, and the executive--learn from past experience how to achieve an appropriate balance between rights protection, furthering legislative objectives, and the need to defer to the expert judgment of officials in specialized agencies. In this paper, we highlight the worrying trend to embrace 'climate authoritarianism' as the appropriate response to the climate emergency, a trend which may be manifesting itself even in the jurisprudence of the Supreme Court. Here we focus on the dissents in References re Greenhouse Gas Pollution Pricing Act, but also point out that the trend may go beyond both this decision and the climate context.
Mariana Mota Prado & Patricia Galvão Ferreira, “Who is paying for the costs of climate change? Insuresilience as an Institutional Bypass”
Climate change has raised a number of redistributive concerns, which are often labelled “climate justice”. One of the most pressing climate justice issues is the fact that some of the countries that contributed the least to the global climate crisis are the ones facing the higher costs, through climate related losses and damages. These developing and vulnerable nations have argued that it would not be fair to expect them to pay for such losses out of their own pockets. Yet, developed countries that contributed the most to the climate crisis are resisting the idea that they should have an obligation to pay for climate related loss and damage in other countries. In search for alternatives, Insuresilience was created. This is a global multistakeholder initiative to facilitate insurance mechanisms in climate vulnerable developing countries. It is a collaboration between the G20 and the V20 (the group of most climate vulnerable countries) and it also involves insurance companies, research institutes, multilateral organizations and high-profile individuals (who are currently members of high-level consultative group, the governing body of the initiative). Our main claim in this article is that Insuresilience is operating as an international institutional bypass of the UNFCCC Warsaw Mechanism on Loss and Damage, which is also promoting insurance pools and other financial instruments related to climate risks under the UN climate regime. As such, it has features that try to overcome some of the shortcomings of the UNFCCC Warsaw mechanism, as we describe in detail in this article. While at first sight Insuresilience looks like a promising innovation, we examine critiques and concerns including whether it offers a better option to resolve one of the most pressing climate justice issues of our time, or whether it is a second-best option that also creates the risk (often associated with this type of global public-private regulatory initiative) of reducing incentives to strengthen the multilateral Warsaw Mechanism.